Perry v. Perry, No. 1467

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
Citation301 S.C. 147,390 S.E.2d 480
PartiesJunior Lacie PERRY, Appellant, v. Gisela PERRY, Respondent. . Heard
Decision Date18 January 1990
Docket NumberNo. 1467

Page 480

390 S.E.2d 480
301 S.C. 147
Junior Lacie PERRY, Appellant,
v.
Gisela PERRY, Respondent.
No. 1467.
Court of Appeals of South Carolina.
Heard Jan. 18, 1990.
Decided Feb. 26, 1990.

Page 481

[301 S.C. 149] J. Kevin Holmes and Malcolm M. Crosland, Jr., both of Steinberg, Spitz, Goldberg, Pearlman, Holmes & White, Charleston, for appellant.

J. Ted. Kiene, Charleston, for respondent.

PER CURIAM:

Respondent, Junior Lacie Perry, initiated this action against appellant, Gisela Perry, seeking a divorce on the ground of one year continuous separation. He subsequently amended his petition to allege as an additional ground, adultery by Mrs. Perry after the separation of the parties. The family court granted Mr. Perry a divorce on the ground of adultery and found Mrs. Perry forever barred from receiving alimony by reason of her acts. The court also confirmed an oral property settlement agreement entered into by the parties at the time they separated and held each party responsible for his or her own attorney fees.

The issues on appeal are whether the family court erred by (1) finding Mrs. Perry committed adultery and concluding she was thereby forever barred from receiving alimony; (2) failing to make findings on Mrs. Perry's entitlement to support during the period between the date of separation and the alleged adultery; (3) finding the property agreement to be fair and equitable; and (4) failing to award Mrs. Perry attorney fees and costs. We affirm.

The Court of Appeals has jurisdiction in a divorce case to find facts based on its own view of the preponderance of the evidence; however, it is not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to evaluate their testimony. Ray v. Ray, 296 S.C. 350, 372 S.E.2d 910 (Ct.App.1988).

I

Mrs. Perry argues the finding of adultery is not supported by the preponderance of the evidence. We reject this argument. Robert Perry, the adult son of Mr. Perry from a [301 S.C. 150] previous marriage, lived with Mrs. Perry for a period following the separation. Robert testified that Mrs. Perry committed adultery with two men during the time he stayed with her. Mrs. Perry, the two alleged paramours and the roommate of Mrs. Perry denied any adultery.

Mrs. Perry first contends the trial judge erred by believing the testimony of the adult son of Mr. Perry over the testimony of Mrs. Perry and her witnesses. "We have reviewed the record and note that there is a conflict in testimony. The trial judge, however, was in a better position to evaluate this testimony, since [he] was able to hear and observe the witnesses." Id. at 352, 372 S.E.2d at 911. He obviously found the testimony of Robert to be more credible. Thus, his findings will not be disturbed.

Mrs. Perry also contends Mr. Perry failed to meet his burden of proof because he "failed to establish a disposition of the wife to commit adultery." "Adultery may

Page 482

be proven by either direct or circumstantial evidence or a combination of the two. Circumstantial evidence is just as good as direct evidence if it is equally convincing and establishes the disposition to commit the offense and the opportunity to do so." Donahue v. Donahue, 299 S.C. 353, 357, 384 S.E.2d 741, 744 (1989). "State of mind can be inferred from circumstances ... [and] [t]he same evidence which proves the opportunity can also prove the disposition." Prevatte v. Prevatte, 297 S.C. 345, 351, 377 S.E.2d 114, 118 (Ct.App.1989).

Robert testified that one of the alleged paramours stayed at the apartment for "weeks at a time" and generally spent the night in the...

To continue reading

Request your trial
10 practice notes
  • Lewis v. Lewis, No. 26973.
    • United States
    • South Carolina Supreme Court
    • May 9, 2011
    ...the family court judge who has observed the witnesses and is in a better position to judge their demeanor and veracity.”); Perry v. Perry, 301 S.C. 147, 149, 390 S.E.2d 480, 481 (Ct.App.1990) (citing Ray v. Ray, 296 S.C. 350, 372 S.E.2d 910 (Ct.App.1988)) (“The Court of Appeals has jurisdic......
  • Michael D.C. v. Wanda L.C., No. 23937
    • United States
    • Supreme Court of West Virginia
    • October 24, 1997
    ...618 (1993) (clear and convincing); Crawford v. Crawford, 429 Pa.Super. 540, 633 A.2d 155 (1993) (clear and convincing); Perry v. Perry, 301 S.C. 147, 390 S.E.2d 480 (Ct.App.1990) (preponderance); Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn.Ct.App.1988) (preponderance); Clements v. Clements, 255......
  • Roberts v. Roberts, Opinion No. 2009-UP-190 (S.C. App. 5/5/2009), Opinion No. 2009-UP-190.
    • United States
    • Court of Appeals of South Carolina
    • May 5, 2009
    ...to financially support on the date of divorce, and neither was at fault in causing the dissolution of the marriage. See Perry v. Perry, 301 S.C. 147, 152, 390 S.E.2d 480, 483 (Ct. App. 1990) (holding that although the family court failed to make appropriate findings regarding the equitable ......
  • Arthur Wilson Roberts III v. Clarice Gibbons Roberts ., Opinion No. 2009-UP-190.
    • United States
    • Court of Appeals of South Carolina
    • May 5, 2009
    ...to financially support on the date of divorce, and neither was at fault in causing the dissolution of the marriage. See Perry v. Perry, 301 S.C. 147, 152, 390 S.E.2d 480, 483 (Ct. App. 1990) (holding that although the family court failed to make appropriate findings regarding the equitable ......
  • Request a trial to view additional results
10 cases
  • Michael D.C. v. Wanda L.C., No. 23937
    • United States
    • Supreme Court of West Virginia
    • October 24, 1997
    ...618 (1993) (clear and convincing); Crawford v. Crawford, 429 Pa.Super. 540, 633 A.2d 155 (1993) (clear and convincing); Perry v. Perry, 301 S.C. 147, 390 S.E.2d 480 (Ct.App.1990) (preponderance); Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn.Ct.App.1988) (preponderance); Clements v. Clements, 255......
  • Lewis v. Lewis, No. 26973.
    • United States
    • United States State Supreme Court of South Carolina
    • May 9, 2011
    ...the family court judge who has observed the witnesses and is in a better position to judge their demeanor and veracity.”); Perry v. Perry, 301 S.C. 147, 149, 390 S.E.2d 480, 481 (Ct.App.1990) (citing Ray v. Ray, 296 S.C. 350, 372 S.E.2d 910 (Ct.App.1988)) (“The Court of Appeals has jurisdic......
  • Roberts v. Roberts, Opinion No. 2009-UP-190 (S.C. App. 5/5/2009), Opinion No. 2009-UP-190.
    • United States
    • Court of Appeals of South Carolina
    • May 5, 2009
    ...to financially support on the date of divorce, and neither was at fault in causing the dissolution of the marriage. See Perry v. Perry, 301 S.C. 147, 152, 390 S.E.2d 480, 483 (Ct. App. 1990) (holding that although the family court failed to make appropriate findings regarding the equitable ......
  • Arthur Wilson Roberts III v. Clarice Gibbons Roberts ., Opinion No. 2009-UP-190.
    • United States
    • Court of Appeals of South Carolina
    • May 5, 2009
    ...to financially support on the date of divorce, and neither was at fault in causing the dissolution of the marriage. See Perry v. Perry, 301 S.C. 147, 152, 390 S.E.2d 480, 483 (Ct. App. 1990) (holding that although the family court failed to make appropriate findings regarding the equitable ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT